Emalahleni Housing Company (NPC) v Maseko and Others (228/2021) [2021] ZAMPMHC 8 (18 March 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

18 March 2021

CASE NO: 228/2021

In the matter between:

EMALAHLENI HOUSING COMPANY (NPC)

Applicant

And

MLUNGISI NEVILLE MASEKO

First Respondent

DANIEL MOSENE

Eighth Respondent

TEMANI THEMBA

Ninth Respondent

KENNETH SKOSANA

Thirty Sixth Respondent

JUDGMENT

BRAUCKMANN AJ

INTRODUCTION

[1] The applicant has brought an urgent application against the 1st, 8th, 9th and 36th respondents (“The Respondents”) on the basis that the respondents have deliberately violated the court orders dated 5 February and 18 June 2019, and are therefore in contempt of court.

[2] The applicant has indicated that it intends to withdraw the application against the thirty sixth respondent. Although such withdrawal was never formally effected or done in Court when the application was heard, I accepted that the matter would not proceed against 36th respondent. The applicant will be liable for the cost of the 36th respondent up and until the filing of its replying affidavit, but always subject to the cost order that will eventually be made herein.

FACTUAL MATRIX

[3] The applicant controls a housing complex in eMalahleni, Mpumalanga in terms of a settlement agreement between the eMalahleni Local Municipality and itself (‘the development”). The respondents are residents of the development. The relationship between the applicant and the residents of the development is strained due to a litigious history between the two sides. The parties are also involved in litigation in the Magistrates Court and in this Court.

[4] On 18 February 2021, following an interview with applicant’s management that was broadcast over a local radio station and a report published in a local newspaper the first respondent called upon the members of the community to attend a meeting at the development. In terms of the aforementioned report and interview it was alleged that the applicant obtained eviction orders against the residents and would approach the court to execute such orders despite the moratorium on evictions in terms of the Regulations in terms of the Disaster Management Act of 2002[1]. In terms of the regulations South Africa was placed under level 3 and as such meetings and its participation therein was unlawful and prohibited.

[5] The first and eighth respondents are respectively the chairperson and deputy chairperson of a residents committee. According to the applicant the calling of the meeting and its participation therein was unlawful and prohibited under the regulations.

[6] The applicant’s security officers arrived where the meeting was convened in the development to investigate. A confrontation then took place and a certain Mr Bekkie Masiya grabbed one of the security guard’s (Mr Makhubela) cellular phone. Mr Makhubela was at that stage sitting in the driver’s seat of the security vehicle, using the phone to record the events taking place. I pause to mention that the video footage was made available to all relevant parties and the Court.

[7] Mr Makhubela attempted to retrieve his phone, assisted in the process by his colleague Mr Maluleka. The former was then accosted by the eighth and ninth respondents during which they attempted to dispossess Mr Maluleka of his firearm.

[8] After this confrontation, the respondents allegedly proceeded to the main entrance to the development where they barricaded the main entrance of the development by inciting the members of the community to throw tyres and trash on the road surface, which caused the other residents not to be able to enter the development.

[9] During the evening of 19 February 2021, a further incident took place in terms of which certain assets under the control of the applicant were torched, including three mini substations, grass trimmers and two units of the immovable property. This incident led to further violence in the development, and eventually the arrest of one of the applicant’s security personnel for allegedly shooting at the residents. This incident, although irrelevant to the adjudication of the matter, led to the filing of unnecessary documentation. More about that later.

THE COURT ORDERS

[10] During 2019 two orders were made by this Court at the instance of the applicant after protest action at the applicant’s development. Both applications were brought on the urgent court roll and eventually granted by this Court after the parties, duly represented by their legal representatives, consented to the orders.

[11] The salient terms of the court orders provide that the respondents are interdicted and restrained from:

[11.1] interfering with the applicant’s access to the property described as Uthingo Park (“the development”);

[11.2] destroying, damaging or defacing any of the premises managed by the applicant;

[11.3] participating in, inciting others to participate in any unlawful conduct; and

[11.4] inciting violence and/or inciting others to support in violent and/or unlawful conduct.

[12] The terms of, existence and service of the court orders are not in dispute.

COMMON CAUSE FACTS

[13] The following facts became common cause on the affidavits:

a. that a meeting took place on 18 February 2021, whilst the Republic was operating under Level III under the National Disaster Act,

b. the meeting was chaired by the first respondent,

c. the first and eighth respondents were present at the meeting in their as the chairperson and deputy-chairperson of the residents committee,

d. the ninth respondent attended the meeting as a member of the community,

e. the security officers drove the vehicle within the premises as part and parcel of the duties and recorded the events with a cellular phone,

f. a confrontation took place when the first respondent told the security officers to leave the scene as they were disrupting the meeting,

g. person known as “Bekkie” then grabbed the security officer’s cellular phone whilst at that stage the eighth respondent was speaking to Mr Maluleka,

h. the respondents were aware of the terms of the Court Orders,

i. the orders were served on the respondents and the orders were still valid orders.

THE DISPUTE

[14] Respondents deny that they violated the terms of the Court Orders. If it is found that they did violate it, the applicant failed to prove beyond a reasonable doubt that they were guilty of contempt of court.

[15] The Court is also called upon to decide whether material factual disputes were raised in the opposing affidavits which would prevent the Court from granting final relief to applicant.

[16] It is the Respondents contention that evidence adduced by the Respondents indicates that on the 18th February 2021the security officers were randomly shooting people with rubber bullets and live firearms, after driving “forcefully” into the crowd..

[17] Further, that first applicant was not present when the barricading of the entrance to the premise occurred as he left for Newcastle immediately after the meeting. The eighth and ninth respondents also denies being involved in the barricading.

[18] The court is called upon to decide whether the respondents by attending the “illegal” meeting that allegedly took place in violation of the Disaster Act Regulations committed contempt of court. The second question is whether first, eighth and ninth respondents were involved in the barricading of the entrance to the development, and if so, whether their conduct amounted to contempt of court.

URGENCY

[19] The application was initially set down on this court’s urgent roll of 16 March 2021, but was stood down to 17 March 2021 due to the fact that the internet access was very unstable. It was decided to hear the application in court on 17 March 2021.

[20] It is trite that a contempt application, by its very nature, introduces an element of urgency in the proceedings, especially when there is an ongoing contempt of a court order[2]. Having read the papers and being steeped in the history of this dispute, I deemed the application sufficiently urgent to enrol it on the urgent court’s roll, which I did, and heard arguments on the merits by both parties.

THE LAW ON CONTEMPT

[21] The law on contempt proceedings in civil matters have become settled[3]. Where the Judiciary cannot function properly, the rule of law will die. To protect this, special safeguards have been in existence for many centuries, one of these being civil contempt of court[4]. The judiciary does not have an army or police force to protect its status. It relies on the executive branch of the government to enforce its orders, amongst other, by incarcerating contemnors.

[22] In the Fakie, supra, the following was stated as the test for contempt of court:

“as whether the breach was committed ‘deliberately and mala fide’. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable made be bona fide (although unreasonableness could evidence of lack of good faith). These requirements - that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt - accord with the broader definition of the crime, of which non-compliance with some orders is a manifestation.”[Own emphasis}

[23] In the matter of Clement v Clement[5]it was held that a person’s disobedience must be not only wilful but also mala fide. A Respondent can defend himself by advancing evidence that establishes a reasonable doubt as to whether non-compliance is justified or proper is incompatible with intention to violate the court’s dignity, repute or authority[6].

[24] When it comes to the requirements to be successful in the application, the Constitutional Court in Matjabeng[7] held that:

“It should be noted that developing the common law thus does not require the prosecution to lead evidence as to the accused’s state of mind or motive: Once the three requisites… have been proved, in the absence raising a reasonable doubt as to whether the accused acted wilfully and mala fide, all the requisites of the offence will have been established. What is changed is that the accused no longer bears a legal burden to disprove wilfulness and mala fides on a balance of probabilities, but to avoid conviction need only lead evidence that established reasonable doubt.

There can be no reason why these protections should not apply also where a civil applicant seeks an alleged contemnor’s committal to prison as punishment for non-compliance. This is not because the Respondent in such an application must inevitably be regarded as an ‘accused person’ for the purposes of section 35 of the Bill of Rights.”[Own emphasis]

[25] Therefore, the requirements may be summarised as follows:

[25.1] once the applicant proves the order, service of the order and non-compliance, the respondent bears the evidential burden in relation to wilfulness and mala fides;

[25.2] should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt;

APPLICANTS ARGUMENTS

[26] On 18 February 2021 the first respondent called upon the members of the community to attend a meeting at the development. The meeting was attended by the fist, eighth and ninth respondents. First respondent is referred to as the so-called “ring leader” of the offending residents and residents committee.

[27] The meeting was called for during under level three under the regulations issued under the National Disaster Act, and as such the calling of the meeting and participation therein was unlawful and prohibited. The mere attendance of the meeting (and the calling thereof), so goes the applicant’s argument, violates the court orders which states (and it is also not disputed by respondents) that respondents were interdicted and restrained from: “participating in, inciting others to participate in any unlawful conduct” As the meeting was unlawful, the respondents are according to the applicant, per se in contempt.

[28] The second averment is that the respondents took part in the barricading of the developments’ entrance and thereby violated the court order that interdicted and restrained respondents from: “interfering with the applicant’s access to the property described as Uthingo Park (the development)” Further that eighth and ninth respondents attempted to disarm Mr Maluleka after he attempted to assist Mr Makhubela to recover his phone. Mr Maluleka was accosted by the two respondents in the process.

RESPONDENTS’ ARGUMENTS

[29] The respondents do not deny that a meeting was convened by the first respondent, and that eighth and ninth respondents attended the meeting on 18 February 2021. It is further not denied that the applicant’s security officers attended the scene on that day and made the video recording. So too is it not denied that an altercation between the security personnel and the respondents ensued after “Bekkie” (I presume it is “Bheki”) took the one guard’s phone and attempted to delete the recording.

[30] The respondent state that the meeting was convened in the face of threats by applicant in the media of imminent evictions of the residents from the development. In an annexure to all the opposing affidavits it appears that the deponent to the applicant’s founding affidavit did mention the fact that further steps for the eviction of respondents and residents are being planned in the near future. The meeting was simply scheduled to update and inform the residents of the latest developments in respect thereof, but turned south after the confrontation with the security guards.

[31] The respondents deny being present when the barricading of the entrance was caused. First respondents states he left for Newcastle immediately after the meeting, and the other respondents also answers with a bare denial. It is denied that the entrance was blocked off by placing burning tyres and placed refuse trash in the road.

[32] The respondents argue that the opposing affidavits raised material factual disputes that cannot be are resolved on the papers.

SOLVING FACTUAL DISPUTES IN APPLICATIONS.

[33] In National Director of Public Prosecutions v Zuma[8] Harms DP observed that motion proceedings were really designed for the resolution of legal disputes based on common cause facts. “

“Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon­Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's affidavits, which have been admitted by the respondent together with the facts alleged by the latter, justify such order. It may be different if the respondent's version consists of bald denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or is so clearly untenable that the court is justified in rejecting them merely on the papers.”[9]

[34] The above does not apply to legal disputes. The factual disputes must be material. A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. It is the Respondents contention that they have raised serious unambiguously the disputes in the affidavits. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied[10].

[35] Court should take “a robust, common sense approach” to the disputes (in so far as they are relevant to the determination of the application) and should not hesitate to decide an issue on affidavit merely because it may be difficult to do so. In Soffianti v Mould[11] it was held that:

“In the case of Room Hire Co. (Pty.) Ltd v Jeppe Mansions (Pty.) Ltd., 1949 (3) SA 1155 (T), at p. 1165 MURRAY, then A.J.P., said:

'A bare denial of applicant's material averments cannot be regarded as sufficient to defeat applicant's right to secure relief by motion proceedings in appropriate cases. Enough must be stated by respondent to enable the Court to conduct a preliminary examination and to ascertain whether the denials are not fictitious intended merely to delay the hearing.' (or for some other purpose) 'The respondent's affidavits must at least disclose that there are material issues in which there is a bona fide dispute of fact capable of being decided only after viva voce evidence has been heard.'

If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to Court on motion, then motion proceedings are worthless, for a respondent can always defeat or delay a petitioner by such a device. It is necessary to make a robust, common-sense

approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.

The respondent has set out his case in the greatest detail. In reply the appellant has made a bald denial to some allegations; others he has not denied at all. … This vagueness and lack of detail makes the excuse very unconvincing, and suggests that no details are given because there are none. These details as regards the alleged plumbing work would not have helped the appellant, but he did not know this. The vagueness apparent on this point is characteristic of the whole of the appellant's case.” [Own emphasis]

[36] In the decision of Da Mata v Otto N.O. [12] reference was made to “Wigmore on Evidence” (3rd Edition, volume 7, page 262) as follows:

“The learned author in this connection at p. 262 cites the following passage from a decision quoted:

'It is not infrequently supposed that a sworn statement is necessarily proof, and that, if uncontradicted, it established the fact involved. Such is by no means the law. Testimony, regardless of the amount of it, which is contrary to all reasonable probabilities or conceded facts - testimony which no sensible man can believe - goes for nothing; while the evidence of a single witness to a fact, there being nothing to throw discredit thereon, cannot be disregarded.'

Also in Siffman v Kriel, 1909 T.S. 538, INNES, C.J., at p. 543 says:

'It does not follow, because evidence is uncontradicted, that therefore it is true... The story told by the person on whom the onus rests may be so improbable as not to discharge it.'”

[37] The aforesaid approach was endorsed by the Supreme Court of Appeal in Buffalo Freight Systems v Crestleigh Trading[13] where it was held that:

“[19] The court a quo approached the matter on the basis that the facts pertaining to the agreement of 5 may 2008 were in dispute and that there had been no request by the appellant that the matter be referred for evidence or trial. it then applied the principle in Plascon-Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634 E -F (where it was held that the court must deal with the matter on the basis of the respondent’s version coupled

with the admitted facts in applicant’s papers) however, in Truth Verification Testing Centre CC v AE Truth Detection CC 1998 (2) SA 689 (W) at 698 H - J, Eloff AJ said:

‘I am also mindful of the fact the so-called robust common-sense, approach’ which adopted in cases such as Soffiantini v Mould

1956 (4) SA 150 (E) in relation to the resolution of disputed issues on paper usually relates to situations where a respondent contents himself with bald and hollow denials of factual matter confronting him. There is, however, no reason in logic why it should not be applied in assessing a detailed version which is wholly fanciful and untenable.’

I respectfully agree. The court should be prepared to undertake an objective analysis of such disputes when required to do so. In JW Wightman (Pty) Ltd. v Headfour (Pty) Ltd. [2008] ZASCA 6; 2008 (3) SA 371(SCA), it was suggested how that might be done in appropriate circumstances. The present case calls for a similar analysis.”

[38] The test and process laid out above can be applied in this case as well and more so to the second allegation against the respondents (barricading the entrance to the development).

DISCUSSION

THE “UNLAWFUL” MEETING OF 18th FEBRUARY 2018

[39] I am of the view that the applicant has failed to prove beyond a reasonable doubt that the respondents was malicious in their conduct when they convened and attended the meeting called by first respondent on the 18th February 2021. The mere fact that the meeting was unlawful because of the Disaster Management Regulation does not translate per se into contemptuous conduct or intention by the respondents.

[40] As stated earlier in this judgment, a deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable made be bona fide (although unreasonableness could evidence of lack of good faith).

[41] The applicant does not deny that it had the discussion over the radio that it had obtained eviction orders against many of the residents or that it have approached the court (Magistrate) for certain amendments to the eviction orders that were obtained. The report in the local newspaper was also not denied.

[42] The respondents called and attended the meeting on the 18th February 2018, not with a brazen or malicious intent vis a vis the court orders, but to discuss the looming evictions and their attorney’s actions to prevent the evictions. Although the

intention was to meet, the unlawfulness in terms of the Disaster Management Regulations was most probably very far from the minds of the residents. They met in good faith to discuss their impeding fate on that day. I am also not convinced that meetings like those that was convened, although it became unlawful since March 2020, was even vaguely contemplated by either party when they agreed to the orders. To accept that because the meeting was unlawful, the respondents maliciously violated the court orders is far-fetched, to say the least. I cannot agree with the applicant on this score at all. The court is not there to police the unlawful gatherings. That is the responsibility of the law enforcement agencies like the South African Police Services (“SAPS”). A compliant must be laid with them, and after it was investigated, the court will come into the frame if the Public Prosecutor decides to prosecute the residents in terms of the Disaster Management Regulations.

BARRICADING OF THE ENTRANCE TO THE DEVELOPEMENT

[43] The applicant alleges that after the scuffle between eighth, ninth respondents and Mr Maluleka, and after the other security guards assisted him, “The protesters proceeded to the main entry (sic) of the property and they proceeded to barricade the entry by using burning tyres and refused trash. In doing so it became impossible for other tenants of the property to enter the estate. Again the protesters barricaded the main entry in the face and the incitement of the first respondent. He was at all relevant times at the forefront of this protest.”[14]

[44] The first respondent, as the chairman of the protesters, state in his opposing affidavit that the protestors and he did not move to the entrance and did not barricade the entrance as alleged by applicant. No confirmatory affidavits by the protestors whom he represents are attached to his, or for that matter the other respondents’ affidavits. First respondent states, “as soon as the meeting was disrupted by the security officers, I then drove off to KwaZulu-Natal (Newcastle) where I reported on duty on the 19th February 2021.[15]” He further stated that proof of his stay in a guesthouse was annexed to his affidavit, which was not the case.

[45] The averments by first respondent (and the other respondents as well) are extremely vague. Their denials amounts to bare denials of specific allegations supported by three eyewitnesses of the applicant. Mr Malulekha and Makhubela attest to sworn affidavits, confirming the allegations paragraph in 38 of the applicant’s founding affidavit. The respondents’ opposing affidavits, in this regard mirrors each other, and admits the security guards affidavits. Thereby the respondents give conflicting versions of what, according to them transpired after the meeting. The respondents’ opposing affidavits are replete with bare denials, and lack particularity and detail one would have expected from attendees at the meeting. More so of the chairman and deputy chairman of the committee.

[46] Although the evidence about the incidents of 19 February 2021 is not relevant, I need to mention that the description of the events and aftermath thereof abounds with detail in the respondent’s affidavits. One would have expected the same detail in about the events that transpired on the 18th February 2021. The only reasonable inference to be drawn is that the respondents cannot provide the particulars as it will indicate that they took part in the barricading of the roads. From there also then the admission in paragraph 47 of first respondent’s opposing affidavit of the averments referred to by the guards. Similar admissions are contained in the eighth and ninth respondents’ affidavits, answering to the guards affidavits.

[47] The incidents that took place after the arrival of the applicant’s security guards on the 18th February 2021cannot be judged in the same manner as the meeting and attendance thereof. The respondents’ conduct was not bona fide. Lighting tyres and barricading an entrance is not done by holding an honest belief that although your conduct is violating an order, it is still justifiable as a result of the fact that the applicant’s guards prevented the meeting from taking place (if that did happen at all). The intention of the protestors was to prevent entrance and exit from the development that day. The fact that they might have been irked by conduct of the applicant is irrelevant. It was exactly to prevent these circumstances that applicant approached the court for the court orders.

[48] The first respondent did not take the court into his confidence by providing a time that he left the scene on the relevant day. It is highly improbable that he would have dropped his megaphone and left for Newcastle before the barricading started. In any event, the detail provided by him is very scanty. So too the other respondents.

[49] The court should be prepared to undertake an objective analysis of the disputes when required to do so and the Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits. The respondents provided the court with the bare minimum of facts. That in the face of a detailed, objective and corroborated version of the events when barricading took place.

[50] The court is of the view that the respondents failed to acquit the evidential burden on them. Their versions of how the events unfolded is simply not reasonably possibly true. I can safely say that the versions are palpably untrue. Therefore I find the first, eighth and ninth respondents to be in contempt of this court’s order dated 5 February 2018, in that they intentionally prevented the access to the property.

THE OVERBURDENING OF PAPERS

[51] The court expressed its concern about the unnecessary duplication of documents attached to the various opposing affidavits, as well as the fact that the opposing affidavits were basically a repetition of the first respondent’s affidavit, with the exception of some portions thereof. The affidavits are replete with spelling as well as grammatical errors. It is obvious from a reading of the affidavits that the respondents’ attorney attempted to generate as voluminous opposing papers as possible. The record was unnecessarily burdened with a great deal of material that was entirely unnecessary.

[52] The respondent’s opposing papers also contains irrelevant annexures. In total, 243 pages of the opposing affidavit were unnecessary, and just wasted the court’s time by expecting the court to trawl through those papers to establish whether something relevant might be contained in it. The applicant’s legal team had the same tiresome task. This not only inflates the high costs of litigation but also leads to a complete waste of valuable judicial time and inconvenience to members of this court. The courts have previously expressed its displeasure at papers that include unnecessary documents and have, where appropriate, ordered costs to be paid by attorneys de bonis propriis, or disallowed the offending party’s attorney's costs of perusing the record.

[52] In the present matter, the exigencies of the case will be met by allowing the respondents attorney to charge his clients (the respondents) for only 25 percent of the costs for preparing and lodging of the opposing affidavits.

[53] In the result, the following order is made:

[53.1] the application against the 36th respondent is withdrawn, and the applicant is ordered to pay the costs.

[53.2] Mr MHLUNGISI NEVILLE MASEKO, DANIEL MOSENE and THEMBA TEMANI are

found guilty of contempt of court and are sentenced to 60 days imprisonment, wholly suspended for two years on condition that they

are not, within the period of suspension convicted of the crime of contempt of the orders of this court dated 05 February 2019 and 18 June 2019.

[53.2] the respondents are ordered to pay the applicant’s costs

jointly and severally, the one to pay, the other to be absolved.

[53.3] the respondents’ attorney my only charge his clients (the

respondents) 25 percent of the costs for perusing the documents, drafting of and preparing and lodging of the opposing affidavits.

HANDED DOWN VIA INTERNET ON 18 MARCH 2021

HF BRAUCKMANN

ACTING JUDGE OF THE HIGH COURT

REPRESENTATIVE FOR THE APPLICANT: ADV AN KRUGER

INSTRUCTED BY: HARVEY, NORTJE WAGNER MOTIMELE INC - Alicia Liebenberg <collections@harveynortje.co.za>

REPRESENTATIVE FOR THE RESPONDENT: MR SE SETSOALO

INSTRUCTED BY: MOHUBE SETSOALO MABUSELO INC - 'Setsoalo@msattorneys.net'; 'admin@msattorneys.net';

DATE OF HEARING: 17 MARCH 2021

DATE OF JUDGMENT: 18 MARCH 2021

[1] Regulation 36 (No. R. 11 of GG No. 4066 dated 11 January 2021 and No. R. 92 of GG No. 44158 dated 13 February 2021.

[2] Protea Holdings v Wright 1978 (3) SA 865 (W) at page 868.

[3] Fakie NO v CCII Systems (Pty) Ltd2006 (4) SA 326 (SCA) at 332.

[4] Laubscher v Laubscher 2004 (4) SA 350 (T) at 357.

[5] 1961 (3) SA 861 (T) at 866.

[6] Fakie, supra[2006] ZASCA 52; , 2006 (4) SA 326 (SCA) at 345.

[7]Matjhabeng Local Municipality v Eskom Holdings Limited and others, Case no: CCT 217/15.

[8] National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)

[9] Zuma, supra, at par [26].

[10] Plascon Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C [also reported at [1984] ZASCA 51; [1984] 2 All SA 366 (A) – Ed] read with Wightman t/a JW Construction v Headfour (Pty) Ltd and another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) at 375D-G at paragraphs 12 and 13.

[11] 1956 (4) SA 150 (E) at 154G-H.

[12] 1972 (2) SA 858 (A) at 869D-E.

[13] 2011 (1) All SA 8 (SCA) at par 19.

[14] Paginated bundle, page 15, para 38.

[15] Paginated papers page 59, para 7.7.